Wilcox v. Lyons

• Decision Date: 11 August 2020
• Docket Number: No. 19-1005,19-1005
• Parties: Colette Marie WILCOX, Plaintiff - Appellant, v. Nathan H. LYONS, Esq.; Phillip C. Steele, Esq. Defendants - Appellees, and Carroll County, Virginia, Defendant.
• Court: U.S. Court of Appeals — Fourth Circuit

970 F.3d 452

Colette Marie WILCOX, Plaintiff - Appellant,

v.Nathan H. LYONS, Esq.; Phillip C. Steele, Esq. Defendants - Appellees,andCarroll County, Virginia, Defendant.

No. 19-1005

United States Court of Appeals, Fourth Circuit.

Argued: January 30, 2020

Decided: August 11, 2020

ARGUED: Thomas E. Strelka, STRELKA LAW OFFICE, Roanoke, Virginia, for Appellant. Henry S. Keuling-Stout, KEULING-STOUT, P.C., Big Stone Gap, Virginia, for Appellees. ON BRIEF: L. Leigh R. Strelka, N. Winston West, IV, STRELKA LAW OFFICE, Roanoke, Virginia, for Appellant.

Before NIEMEYER, QUATTLEBAUM, and RUSHING, Circuit Judges.

Affirmed by published opinion. Judge Rushing wrote the opinion, in which Judge Niemeyer and Judge Quattlebaum joined.

RUSHING, Circuit Judge:

Collette Marie Wilcox, a former Deputy Commonwealth Attorney for Carroll County, Virginia, sued her former employer, contending that she was fired in retaliation for reporting alleged sex discrimination. Wilcox sought to proceed solely pursuant to 42 U.S.C. § 1983, on the theory that her public employer's retaliation violated the Fourteenth Amendment's Equal Protection Clause. In line with our precedent and the majority of courts to consider the question, we conclude that a pure retaliation claim is not cognizable under the Equal Protection Clause. We therefore affirm the district court's dismissal of Wilcox's retaliation claim.

I.

A.

Nathan Lyons, the elected Commonwealth Attorney for Carroll County, hired Wilcox to serve as a Deputy Commonwealth Attorney in May 2014.¹ Following an incident on November 30, 2015, Wilcox reported alleged sex discrimination to Lyons. The incident occurred when one of Wilcox's colleagues recounted his efforts to protect a female relative from "rough-housing and unwanted violence." J.A. 138. During this conversation, another of Wilcox's colleagues, defendant Phillip Steele, forcefully struck Wilcox on her right arm or shoulder with a closed fist. Steele accompanied his strike with a derogatory comment toward women. Taken aback, Wilcox told Steele not to "use [her] as demonstrative evidence of violence against women." J.A. 138. She asked Steele to back away from her, but he did not comply. Wilcox feared he might attempt to hit her again. At this point, Lyons entered the room. Wilcox uttered a "nervous joke" about filing a worker's compensation claim for battery and began to leave. J.A. 138. Before Wilcox had made a complete exit, a female colleague entered the room, and Wilcox exclaimed to her that there was "hostility in the room against women." J.A. 139.

Later that afternoon, Wilcox sent Lyons an email describing the incident. The next day, Wilcox met with Lyons to discuss her email. During that meeting, she expressed her opinion that the Commonwealth Attorney's Office promoted, or at least tolerated, discrimination against women. Lyons apologized "for the Office hostility" but did not take "affirmative steps" to reprimand Steele or correct his behavior. J.A. 140. In the weeks after the incident, Wilcox perceived that her colleagues were "distanc[ing] themselves" from her. J.A. 140.

Thereafter, on several occasions in January 2016 Wilcox missed or was late to work due to bad weather or illness. At one point, Lyons asked Wilcox to inform him about her absences by phone rather than text message but added that it was "no big deal." J.A. 141. At the end of January, Wilcox submitted her monthly timesheet to Lyons. Court proceedings had run long one of the days Wilcox was late to work, so although she had arrived late, she made a notation on her timesheet explaining she had worked the equivalent of a full day.

On February 16, 2016, Lyons directed Wilcox to resubmit her January timesheet to reflect sick leave for part of the day on which court proceedings had run late. The next day, Lyons called Wilcox into his office and informed her that she had used too much leave, despite his approval of her leave requests. Lyons then told Wilcox she was in violation of a "state compensation board policy" concerning leave and he was going to issue her a written reprimand. J.A. 142. Wilcox told Lyons she did not know about the policy to which Lyons was referring and asked why Carroll County's leave policy was not applicable. Lyons handed Wilcox the letter of reprimand and directed her to sign it. Wilcox asked if she could read the letter first and requested a copy of the pertinent policy to review. In response, Lyons turned his back, raised his voice, and told Wilcox she was fired for insubordination.

B.

Wilcox subsequently filed this lawsuit against Lyons, Steele, and Carroll County. She alleged sex discrimination, hostile work environment, and retaliation in violation of the Equal Protection Clause, as well as deprivation of a liberty interest in violation of the Due Process Clause and common law battery. The defendants moved to dismiss. The district court dismissed with prejudice all claims against Carroll County and the hostile work environment claim. The court also rejected Wilcox's claims for sex discrimination, retaliation, and deprivation of a liberty interest but granted Wilcox leave to amend those claims.

Wilcox filed an amended complaint in which she dropped her allegation of sex discrimination, asserted additional facts to support her claim for deprivation of a liberty interest, and reasserted her retaliation and battery claims. Pertinent for this appeal, Wilcox did not amend her retaliation claim but instead sought reconsideration of the district court's prior order dismissing that claim. The district court denied Wilcox's motion for reconsideration.² Briefly surveying our precedent regarding Section 1983 retaliation claims, the court observed that it "is far from certain" that "her retaliation claim alleging adverse action on account of her complaint of discrimination is actionable under § 1983 as a violation of the Equal Protection Clause." J.A. 126–127. However, the court determined it need not reach that issue because, even assuming such a claim were viable, Wilcox had failed to state a prima facie case for retaliation.

Drawing on the requirements for a Title VII retaliation claim, the district court concluded that Wilcox failed to sufficiently allege a causal relationship between her protected activity and her termination. Wilcox "relie[d] heavily on temporal proximity" to allege causation, but the court concluded that the two-and-a-half month time span between her report of alleged sex discrimination and her termination was too long to establish causation by temporal proximity alone. J.A. 129. Finding that Wilcox had not pleaded any other evidence of retaliatory animus, the court held that the complaint failed to state a claim for retaliation.

Wilcox appealed. On appeal, she argues that her retaliation claim is actionable under Section 1983 as a violation of the Equal Protection Clause and that she has sufficiently alleged causation to support her retaliation claim. We review the district court's dismissal de novo. Coleman v. Md. Court of Appeals , 626 F.3d 187, 190 (4th Cir. 2010).

II.

As noted above, the district court assumed for the sake of argument that Wilcox's retaliation claim was cognizable under the Equal Protection Clause but determined that she failed to sufficiently allege causation to support her claim. We likewise first consider whether, assuming such a claim is cognizable, Wilcox has sufficiently pleaded it in her complaint. Cf. Hagans v. Lavine , 415 U.S. 528, 547, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974) (reiterating the "ordinary rule that a federal court should not decide federal constitutional questions where a dispositive nonconstitutional ground is available").

The district court borrowed the prima facie case framework from the Title VII retaliation context. Under that framework, to establish a prima facie case of retaliation, a plaintiff must show "(i) that she engaged in protected activity, (ii) that her employer took adverse action against her, and (iii) that a causal relationship existed between the protected activity and the adverse employment activity." Foster v. Univ. of Md.-E. Shore , 787 F.3d 243, 250 (4th Cir. 2015) (brackets and internal quotation marks omitted). Although we have not drawn a bright temporal line, we have observed that two-and-a-half months between the protected activity and the adverse action "is sufficiently long so as to weaken significantly the inference of causation between the two events" in the absence of other evidence of retaliation. King v. Rumsfeld , 328 F.3d 145, 151 n.5 (4th Cir. 2003) ; see id. at 151 & n.5 (nevertheless concluding that temporal proximity was sufficient to establish causation in that case because the end of the school year was "the natural decision point"); cf. Foster , 787 F.3d at 253 (holding complaints of discrimination one month before termination sufficient to create jury question regarding causation prong of prima facie case).

But here, Wilcox has alleged additional facts suggesting retaliation, namely Lyons's alleged overreaction in firing Wilcox for insubordination in response to her request for clarification about the attendance policy and time to read the letter of reprimand. A disproportionate response to a minor workplace infraction suggests pretext and can bolster the causation element of a plaintiff's prima facie case. See , e.g. , Hernandez v. Fairfax Cnty. , 719 Fed. App. 184, 189–190 (4th Cir. 2018) (per curiam). Considered together, Wilcox's allegations about Lyons's overreaction in the reprimand meeting and the two-and-a-half month span between Wilcox's complaint and her termination are sufficient to plead causation at this preliminary stage.

Thus, if Wilcox's retaliation claim were governed by the Title VII framework, her claim would survive dismissal. But Wilcox did not plead a Title VII claim; she has advanced only a Section 1983 claim alleging a violation of the Equal Protection Clause, which she argues should follow the Title VII pattern. We therefore...